.(dissenting) — I cannot agree with the majority *919that the trial court properly dismissed plaintiff’s action for failing to establish a prima facie case. I believe a jury question exists as to the defendant’s negligence in failing to search Gary Keck on the night of the fatal shooting, although he had been expelled from the defendant’s premises 3 weeks earlier for carrying a partially concealed gun. The majority, I believe, improperly decides this issue as a matter of law by holding the evidence insufficient to alert a reasonable man in the defendant’s position that Keck was likely to be armed. To reach this conclusion, the majority must ignore the test it acknowledges is propér to apply in considering motions to dismiss for failure to establish a prima facie case. This test is that the evidence must be considered in a light most favorable to the nonmoving party; no discretion on the part of the court is involved, and it is proper to grant the motion only when there is no competent evidence or reasonable inference arising therefrom to sustain a jury verdict for the nonmoving party.
The question before us is what, giving the plaintiff the benefit of all the inferences in her favor, was reasonable conduct in light of the apparent risk Keck’s behavior created. W. Prosser, Torts § 53 (3d ed. 1964). Courts have long recognized an obligation to exercise control over the conduct of third parties, where the relationship of an innkeeper to his guests exists. Prosser, supra at 334. As the majority recognizes, this special obligation toward third parties is heightened where intoxicating liquors are served. Waldron v. Hammond, 71 Wn.2d 361, 363, 428 P.2d 589 (1967). These factors place the defendant in a special relationship to decedent regarding control over third persons’ conduct toward him.
The majority makes a flat statement without supporting authority in dismissing plaintiff’s case as a matter of law that “the mere fact that he had once been instructed to leave the lounge due.to the presence of a weapon,is insufficient to require the defendant to conduct a ‘search’ whenever Keck subsequently frequented the establishment.” This seems to me to state the issue too broadly and deprive *920plaintiff of the benefit of reasonable inferences in her favor. A reasonable man might well conclude that, if Mr. Keck appeared 3 years after the initial incident and had, in the intervening time, frequently come to the restaurant without being armed, a search would be unreasonable. Here, however, there was only a 3-week interval during which Keck had been in the restaurant once. Properly according the plaintiff the inferences in her favor, the special obligations, short of absolute liability imposed on innkeepers, the short period of time between Keck’s expulsion for carrying a firearm and the fatal shooting of the decedent, and the lethal nature of the possible combination of alcohol and a firearm, would seem to me to leave a jury question on the issue of defendant’s liability.
Brachtenbach and Horowitz, JJ., concur with Utter, J.